Prop 8 News from Stop8.org: DOMA for Dummies: This Week in Prop 8 for Feb 28, 2011

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Prop 8 News from Stop8.org: DOMA for Dummies: This Week in Prop 8 for Feb 28, 2011: "- Sent using Google Toolbar"

Can you even believe this week?

President Obama this week ordered an end to the defense of the Defense of Marriage Act, which is huge. We'll check in with Marriage Equality USA's Molly McKay and Immigration Equality's Lavi Solloway to find out exactly what this means, in addition to talking about Dianne Feinstein's surprise announcement about DOMA's repeal.

And the surprises don't stop there. Ted Olson asked the California Supreme Court this week to expedite oral arguments against Prop Eight, and to start allowing gay couples to start marrying now.

In addition, we all thought Imperial County was out of the game for good, but a new foe popped up this week at the very last minute.

All that plus more good news from Hawaii, Maryland, Delaware, and Rhode Island. Whew!

The DOMA situation is pretty complicated, so let's break it down.

DOMA goes back to 1996, and has three main components. Section 1 just states the name Defense of Marriage Act. Section 2 says that no state has to recognize marriages from any other state. And Section 3 says that the federal government can only recognize marriages between opposite genders.

The law was passed in response to a court case in Hawaii, Baehr versus Miike, which fifteen years ago looked like it might legalize same sex marriage. We'll come back to that case in just a few minutes.

Now, in the last few years, five court cases have challenged DOMA in different ways. The one thing that ties them all together is that they all have awkward names.

First is Commonwealth of Massachusetts versus United States Department of Health and Human Services. Then there's Gill versus the Office of Personnel Management, Dragovich versus the US Department of the Treasury, Golinski v. United States Office of Personnel Management and Pedersen et al. versus the Office of Personnel Management, and Windsor versus United States.

And there have been other challenges, but those six are the most recent and the most likely to succeed. By the way, big big thanks to Box Turtle Bulletin for gathering a lot of this information together.

So, these cases were filed in 2009 and 2010, and the circumstances of each one is a little bit different.

Since Massachusetts legalized marriage equality, the state Attorney General there sued over Section 3 of DOMA when a legally marriage couple was denied burial in a federal veterans' cemetery. Judge Tauro, of the US District Court for Massachusetts in the First Circuit, ruled in our favor in July of 2010. The Department of Justice Appealed in October.

Gill was also filed in US District Court in Massachusetts, also challenged Section 3, also was decided in our favor by Judge Tauro in July of 2010. And also was appealed by Justice in October of 2010.

Dragovich is in the District Court for the Northern District of California, part of the Ninth Circuit, and concerns retirement benefits. That one again challenges Section 3, and although it hasn't yet been decided by Judge Wilkin, she did indicate that she was likely to rule in our favor.

Golinski's interesting because Karen Golinski isn't just a federal employee -- she's an employee of the Ninth Circuit Court of Appeals. And even though a judge has already ordered that she's entitled to spousal benefits, the federal government refuses to obey because of DOMA. So now, she's not just an employee -- she's also a plaintiff.

Pedersen was filed in the District Court of Connecticut, which is part of the Second Circuit. That's important because there's no precedent in the Second Circuit for dealing with sexual orientation discrimination. Five couples sued, again over Section 3, with filings due in March. The judge in that case is Vanessa Bryant.

And finally, Windsor. A couple from New York got married in Canada, one of them passed away, and the survivor was taxed on the estate as though they were single. Filings are due in March, the case challenges Section 3, the judge is Barbara Jones, and the court is US District Court for the Southern District of New York. Also part of the Second Circuit.

Okay. Got all that? Now, here's what's changing.

Until this week, Obama and Attorney General Eric Holder have gotten a lot of criticism for defending DOMA. Their rationale was that precedent compelled them to defend existing law.

Of course, they weren't defending it very hard. That annoyed anti-gay groups, who felt that they could do a better job.

Now, the Justice Department is saying that in the Second Circuit courts, Section 3 of DOMA is unconstitutional. So that means that they won't defend DOMA in Pedersen or in Windsor. They also said that they'll cease to defend DOMA in the first circuit court.

In Dragovich and Golinski, they still might. That's because "unconstitutional" in one court doesn't necessarily equal "unconstitutional" in another court. It's complicated. In essence, their position is that if you just casually glance at DOMA, there might potentially be a rational basis for keeping it around. But if you strictly scrutinize it, then it falls apart. COMPLICATED.

So, what's next?

For now, DOMA's still on the books. And with Justice out of the way, anti-gay members of Congress have the opportunity to step in and defend it themselves, which is what a lot of anti-gay groups wanted to happen all along.

They have until mid-March to decide exactly what they're going to do, but they've been preparing for this for weeks just in case, so we expect them to have a pretty well-organized campaign.

This could also affect on a lot of other cases, starting with Prop 8 case.

I caught up with Marriage Equality USA's Molly McKay in the Castro this week to find out more.

Matt: "So, how do you think the wording of Obama's decision, specifically about using strict scrutiny, how is that going to affect, or potentially could affect, the Prop 8, Perry versus Schwarzenegger? Do you think that could have some ramifications?"

Molly: "Absolutely. The fact that they've weighed in and the President of the United States and the Attorney General of the United States lay out the case for why they believe that heightened scrutiny should apply for sexual orientation is really powerful. And will make a huge difference in the litigation as it's moving forward. That was as big as what they declared today, really."

And oh yeah! The American Foundation for Equal Rights requested this week that the Supreme Court expedite oral arguments against Prop 8 and that the Ninth Circuit Court lift the stay.

The Prop 8 case lives in two different courts right now: the California Supreme Court is considering standing, or who has the right to defend Prop 8. The Ninth Circuit Court of Appeals is deciding whether Prop 8 is constitutional.

If the courts agree with AFER, then it could mean that we'll hear arguments really soon about who has standing to intervene, rather than in September as was originally planned. It would also mean that the Ninth Circuit would issue its decision on constitutional grounds much sooner. It could also potentially mean that gay couples could start getting married right away. Like, this afternoon. So ... ?

Matt: "What do you think the chances are of them expediting the arguments?"

Molly: "Honestly? Hope springs eternal. No matter what, whether it's spring, summer or fall, we will be there, back on the California Supreme Court steps, and we will be watching that hearing. In some ways, it's sort of a side-journey, because ultimately that case may be the one that's decided on the constitutional merits and things are moving faster, the world's moving forward. It's a great suit, can't have better legal advocates. So whether we win on standing or even better maybe the Constitutional issues, change is in the air for sure. And of course, we're so lucky to have a front seat to so much that goes on here. But it calls us to be responsible for that, and to make sure that we show up and we represent our entire country on all of these issues, because this is where so much of it is happening. And the fact that Feinstein, our Senator, is now the one repealing DOMA! Huge! Totally exciting. California rocks."

Oh yeah! Dianne Feinstein. We're not even done talking about the major surprises this week. Senator Dianne Feinstein announced that she intends to introduce a bill to repeal DOMA. So even though there's all these judicial challenges floating around, DOMA might disappear legislatively.

That's a big deal for everyone, but especially for folks working towards immigration equality. The US continues to deport legally married spouses because of DOMA. For more on what that means, let's check in with Lavi Soloway. He's the founder of Immigration Equality and Stop the Deportations.

Matt: "So, Lavi, tell me about one or two of the binational couples that you're representing. Before today, what was your strategy for fighting their deportation?"

Lavi: "Sure. We're representing a group of about a dozen gay or lesbian binational couples, all of whom are married. And in each case, the foreign spouse is in deportation proceedings. And our strategy beginning last summer when the Defense of Marriage Act was struck down as unconstitutional in Boston by a federal court judge, our strategy has been to file I-130 petitions, which are marriage-based green card petitions, on behalf of those couples. And to fight for a halt in deportation while those petitions are being considered."

Matt: "So, before today, what was the administration's response to those petitions?"

Lavi: "Well until today, the expectation was that because of of the Defense of Marriage Act, those petitions would necessarily be denied. That all changed on Wednesday, though. Because if the administration, if we take the administration at its word that it truly believes that he Defense of Marriage Act is unconstitutional, it's clearly acted consistently with that by withdrawing its defense from cases currently pending in the first circuit, we also expect them to exercise prosecutorial discretion, for example in the immigration cases, and not give effect to unconstitutional and discriminatory law, the Defense of Marriage Act. We now have two new voices arguing our position. President Obama and Attorney General Holder. And we believe that we will soon be able to expand our outreach effort to Secretary Napolitano and Secretary Clinton and try to bring in all government agencies that have discretion in how they deal with gay and lesbian bi-national couples, to try to put in some intermediate policy measures that will ensure that as DOMA is being dismantled, being relegated to history, that it does not any more have its pernicious discriminatory effect."

Matt: "So one more bonus question: what do you think of Dianne Feinstein's bill? Do you think it'll have any impact on your work and whether it'll have an impact on the Prop 8 cases, whether those'll have an impact on her? How does this change the ecosystem?"

Lavi: "We're really excited to see Senator Feinstein's announcement on Wednesday that she'll be introducing a bill in the Senate to repeal DOMA. It was followed the next day by Representative Nadler in the house, announcing that he would re-introduce the DOMA repeal bill, Respect for Marriage Act, that had 128 co-sponsors in the last Congress. We believe that this is extremely important because with a DOMA repeal bill pending in Congress, we'll now have all three branches of government in unison all working towards the end of DOMA. Again, the executive branch declaring it unconstitutional, the Congress working to repeal it, and the Judiciary, which has so far struck it down as unconstitutional."

Matt: "What do you think its chances are in Congress? With the election bringing so many Republicans into Congress, is it going to face a hostile reception?"

Lavi: "I think that the introducing a bill to repeal DOMA in the present Congress is a brilliant move, and a wise tactic. Not because we're necessarily sure that we can count up enough votes to pass it into law, but because any bill like this typically takes a lot of work to build a foundation of support. In the last Congress, we saw 120 Democrats joining together to co-sponsor the Respect for Marriage Act. We hope we can top that number in this Congress and add a healthy group of Senators. Senator Leahy announced today that he would join Senator Feinstein as a co-sponsor. And this is the road to victory. It's not necessarily a question of whether it would pass this year or next, but whether or not we can build on substantial support that exists in Congress, perhaps even expand this to become bi-partisan, and eventually pass it and repeal it. I think it's very important that Congress take responsibility to repeal DOMA because in a sense that's the branch of government that should be held accountable for passing it into law in the first place."

Matt: "Right. Well Lavi Soloway, thank you so much for joining us."

Lavi: "Sure."

Okay. I think that's everything with DOMA for this week.

Aside from AFER's requests, the Prop 8 case was pretty quiet this week until Friday, when a clerk from Imperial County stepped in, and said that he wanted to defend Prop 8. They've tried this before, and they messed it up pretty royally. Maybe this time they'll have more success. They only sure thing is that it means more delays.

Big headlines across the country this week: in Delaware, lawmakers anticipate introducing civil union legislation sometime next month. In Hawaii, Governor Neil Abercrombie signed civil unions into law, a long-fought battle that started 15 years ago with Baehr versus Miike -- which, I told you we'd come back to that case. In Rhode Island, a new survey shows a majority support marriage equality, which as always, is our cue to recognize that Rhode Island, you've got style. And the Maryland Senate passed a marriage equality bill.

So start planning your wedding now.

To find out when marriage is coming to your state, subscribe to our weekly updates. And click over here to watch our recent episodes and get all caught up.

See you next week, at which point we may all be getting married.